MSNBC show
Alan Keyes is Making Sense
Alan KeyesJanuary 23, 2002
ALAN KEYES, MSNBC HOST: Good evening. I am Alan Keyes — welcome to MAKING SENSE.
John Walker Lindh set foot a few hours ago on the country against which he had decided to take up arms along with the Taliban and al Qaeda fighters. In one of the most bizarre episodes to come out of this whole war in Afghanistan, we see the situation of somebody who's case has aroused a lot of emotions in Americans. Along with the other folks who have been captured and taken to Guantanamo and held elsewhere, these are people who are bearing the animus of a lot of anger and resentment that certainly besets the American heart in the wake of the terrible attacks that were brought against us on September 11.
A lot of people look at a case like John Walker Lindh and think that the death penalty is too good for him, but certainly inadequate as it might be necessary. And others, of course, in the context of our ongoing debate over this subject, still think that that is not appropriate.
We're going to be looking at that subject tonight. It may be even more apropos than usual by the fact that this is not an abstraction now. We are struggling with the kind of emotions that give point to the issue of capital punishment, anger and resentment and grief and a sense of outrage to justice certainly lead a lot of people to think that we ought to throw the book at these terrorists and make sure that they are never, ever in a position to do this kind of harm to anybody again.
The controversy is still, though, very real, and I think personally that we ought to think that the people who raise their voices against the death penalty are simply doing something unacceptable. I know our feelings may go, some of us, in that direction. But at the same time, I think it's a reminder of the fact that even when we're in the midst of anger and grief, even when we feel, quite rightly and righteously, that justice demands retribution. The American people are also a people of law, and we are a people of conscience, and we are a people who want to make sure that the steps we take correspond to the values and ideals for which we are supposed to stand in the world.
That means that the discussion and debate we have over capital punishment, over how we're treating prisoners in Guantanamo, these are things we shouldn't be impatient with. We should want to try to clearly understand the issues that are involved in order to make sure that as we fight against the evil that has struck us, we are doing so in a way that corresponds to the sense of principle and justice that has characterized this nation's hopes since it was founded. That's what our discussion is going to be about this evening. We're going to take a look at this issue of capital punishment. We're going to try to get behind it a little bit in terms of the facts of its history and background, and to understand where the question about its legitimacy and justice has come from.
We'll be joined, of course, by folks in the “People Just Like You” segment, who will be just that, people just like you. And I want to say that that's one of the aspects of this show that right now has given me the greatest encouragement. You all have responded in a way that has met my, and exceeded in fact, my greatest expectations, and I want to thank you from my heart for the wonderfully encouraging response, and for the participation, for the e-mails, for the chat room. You are getting involved in a way that will help to vindicate the truth that we are a people who care deeply about the situation of our country, about the issues that confronts us in heart, in mind and in reality.
You can get in touch with us here at 1-866-KEYS-USA, and at AlanKeyes@msnbc.com. You can also join our ongoing chat room at chat.msnbc.com. You are a critical part of this show, and I hope it's always in the back of your mind to get in touch with us. If you feel some day like you might want to be part of one of our panels, just let us know. We'll be taking a look at that, talking to people, and as we put together panels every day, we certainly want to be able to consider you, so let us know.
Right now, let's take a look at this now, the issue of capital punishment, one that challenges our sense of justice, challenges our sense of conscious, and at the same time in the midst of the terrible war that we must fight against terrorists and those who aid and abet them, also challenges us to make every day decisions that will, in fact, mean life or death, for those whom we are able to capture and bring to justice in the context of these efforts.
First, let's try to, as we will always do on this show, get the facts. And joining us for the “Just the Facts” segment, we have George Washington University Professor Robert Cottrol, a legal historian and one who is used to thinking about this issue of capital punishment in a pretty broad context of its history and of its background. Now, this issue of capital punishment is one we often talk about in a narrow context of our own society and civilization. But in point of fact, the death penalty has been with us in terms of human affairs literally for thousands of years, hasn't it? Have there been many cultures and civilizations that haven't it included for some crimes the death penalty?
ROBERT COTTROL, LEGAL HISTORIAN: I think you are essentially right. The death penalty has been with us since the beginning of human history, and has basically been a part of most cultures in the world. It only seriously begins to be questioned in the Western world, I think, in the 18th century as part of the more general process of the Enlightenment.
KEYES: Now, what do you think? After all those years of human experience, when in religious traditions, in traditions of law and so forth, the idea that there are some crimes that are so bad that you basically have to inflict the death penalty. What led to a question being raised about the justice inappropriateness of this punishment?
COTTROL: Well, as you have said, the death penalty had been with us — been with human civilization from the very beginning. Let me also say that I think other things, torture had been a part of human punishment in most societies until the Enlightenment. I think what happens is that, particularly in the 18th century, people begin looking at the human condition in new kinds of ways. They begin questioning traditional punishments, and indeed the death penalty begins getting a scrutiny that had not existed.
KEYES: So it's really in the context of reacting against the sense that there had been practices that were cruel, practices that, in fact, were aimed at inflicting pain on people as part even of the test of justice, and folks started to apply principles that were, I guess, in some ways more rational to the idea of what punishment was all about?
COTTROL: I think that's partly it. Certainly by the end of the 18th century, you see, at least most Western nations, questioning the use of torturous punishments. Also you begin seeing a limitation of the death penalty, particularly in America, limiting it to what we today would call first-degree murder and treason, which is quite different from—if you look, for example, at 18th century England, there are some 200 crimes which are capital crimes, including some varieties of petty theft. You begin again towards the end of the 18th century having people rethinking that, and the United States at the beginning is a pioneer in that kind of rethinking.
KEYES: This occurred, did it, in the context as well of an effort to rethink the meaning of punishment itself. I mean, after all, for a long time in human history, the lex talionis, other ideas of that kind, you had punishment that's tit for tat, punishment as retribution, punishment as rectifying the balance of damage that had been created by a given wrong or a given act. In the time period we are talking about, folks started to introduce ideas of punishment that had more to do with rehabilitation, and with trying to establish and promote a certain idea of social progress. Is that so?
COTTROL: Yes. I think that certainly you begin getting more of a utilitarian notion to what extent can we use punishment either as to promote rehabilitation or to promote deterrence. And in the late 18th and early 19th century, there was very often a strong debate between those who are utilitarians and those who are idealists, who believe that retribution is necessary simply as to advance justice.
KEYES: But what about the question...
COTTROL: And it's a debate that we still have to a very great extent.
KEYES: What about the question of the law itself? Because I know that throughout the philosophy of law enforcement, going all the way back to the ancients, including people like Thomas Clarence (ph). There was a concept of a law as necessarily involving in its integrity an idea of being effective, of being enforced in a way that would inspire respect and fear, and therefore take hold on the heart. Was the requirement for the death penalty the argument for its necessity or a part of that understanding of the need to really have forceful punishments behind the law?
COTTROL: I think as now, you've traditionally had a variety of arguments for the death penalty and there are ones that would be recognized even today. That is one could go back and one will find people making what is essentially a retributive argument; others making the utilitarian argument that the death penalty is necessary as a deterrent. Kant — Emmanuel Kant I think is very interesting in this regard, because he argues against a utilitarian calculus and basically for the idea for justice, that the death penalty is necessary simply as a matter of justice...
KEYES: Of justice.
(CROSSTALK)
COTTROL: ... rather than as a utilitarian matter.
KEYES: Well, I certainly think in the midst of this terrorist effort, we're getting a sense of the tension now between the sense that somehow conscience revolts at the idea of cruel and difficult punishments, and the idea that there are certain kinds of crimes that seem to go beyond the pale and therefore require really forceful responses that make it clear that this is totally unacceptable to the world and to society. Robert, thank you so much for joining us tonight — really appreciate your help and insight.
COTTROL: Thank you.
KEYES: On the basis of this little introduction to the issue of capital punishment, we're going to be joined now by some people just like you to have the discussion that I think is becoming the characteristic heart of this program, and that aims at trying to understand a little bit the sense, the logic that is behind the issues that we are confronted with, just applying the common sense of the American people.
Later, we'll get to “What's on Your Mind,” taking your calls, your comments, looking at the wonderful e-mails that have been coming in loads in response to the program. You can join our online discussion at chat.msnbc.com. But first, does this make sense, do you think? I understand that Libya is now engaged in talks with folks at our State Department to come to an agreement to take its name off the list of terrorist states, in exchange for paying $6 billion in compensation to the victims of the bombing that Libya was involved in in 1988. Now, let me see here. We have bin Laden, who was responsible for bringing down the World Trade Center. How many years and how many billions of dollars do you think it will take to get his name off the list of terrorists? Is that an approach that you think makes sense?
(COMMERCIAL BREAK)
KEYES: Welcome back. It's time for a little bit of sense from people just like you. Joining me now is Ben Goldstein, an international affairs student George Washington University. Abbi Crutchfield is also a student at Georgetown. She is studying international affairs and wants to be a diplomat someday, and I've been encouraging that, you can bet. And Bryan Steil is an international business student, also at Georgetown University.
Now, that's not a coincidence. Y'all are going to notice that, I am sure, right away. We have three students tonight. Right now, they're speaking — we are not going to be pre-selecting from any given group. But I kind of felt it would be interesting to talk about this issue from the perspective of young folks, who are in the midst of the kind of considerations and discussions that you and I both know go on until late into the night and early in the morning when you're at college, and can therefore add a kind of intensity, especially in the context of an event like September 11 that obviously has touched the lives of all Americans, but especially young folks in a way perhaps for the first time in their lives with a magnitude like nothing before. And that leads to my first question. Abbi.
ABBI CRUTCHFIELD, GEORGETOWN UNIVERSITY STUDENT: Yes.
KEYES: We are faced with this terrible event on September 11, people who have done something that in many ways in its evil and its consequences goes way beyond what most of us can begin to comprehend. I noticed there was a controversy over Danny Glover, the actor, because he seemed to be suggesting to some folks that maybe Osama bin Laden didn't deserve the harshest possible punishment for masterminding this terrible effort. Aren't there certain crimes that just cry out for the death penalty?
CRUTCHFIELD: No, there are not. And the subject of evil, I think that evil, the basis of evil is hatred, and the basis of the capital punishment is also the vengeance and hatred itself. And the only thing we can combat that with is the abolishment of capital punishment, which would suggest forgiveness or love. And that is my main theme, I think, that I'll be talking about this evening.
KEYES: See, I think that is very important. Do you think, then, that what's at the heart of the issue of capital punishment is hatred and resentment? Is that what we're talking about?
BEN GOLDSTEIN, GEORGE WASHINGTON UNIV. STUDENT: No, I think we're talking about closure for the victims' families. I think we're talking about resolving very tough issues. You know, Abbi, I'd be interested in you maybe going down to ground zero and talking to some of the workers, or talking to some of the victims' families from the World Trade Center attacks and see what they thought about capital punishment.
CRUTCHFIELD: Without a doubt, I bet that their initial reaction is retribution, and they'd like justice to be done. And usually someone wants the most severe punishment, when they have such severe pain. But on the subject of closure, how can they feel closure knowing that once the person is dead, their child, son, daughter, husband and wife is still lost.
KEYES: I have a question before we start, because it's very interesting to me that Abbi just now used retribution and justice as if they are the same thing. Do you think they are?
BRYAN STEIL, GEORGETOWN UNIVERSITY STUDENT: I don't think they are. I think justice, we have to look inside and say with — and act with prudence. Not that we don't have hatred inside ourselves against people who would act against us. But I think it's acting in a morally, proper way as to whether or not we can retaliate, to kill them, to have a government that kills them back, and I think that's completely improper.
KEYES: But is that what we're doing in point of fact? I mean, it's certainly where all of this started. We've talked about the backdrop of history in terms of this whole death penalty, and the lex talionis, as it was called, the law of retribution, eye for an eye, the sense that justice consisted in if you got me, I was going to go get you and so forth. That was one element of justice. But as societies became more organized, and certainly in societies like ours, isn't a part of justice just about, first of all, respect for the law? Isn't that the basis for, not only justice, but order in this life? Would there be any order if you don't have respect and fear of the law? Isn't that, in fact, one of the prime requisites of justice on the whole? Yes or no?
STEIL: There are people who don't respect the law, and those people are not safe in our society to exist. And we have to...
(CROSSTALK)
KEYES: Oh, but right now...
STEIL: Is killing them the answer?
KEYES: Is, in fact, one element of the law, and probably the most important element for law enforcement, right? Just think about it. We often think of the police as law enforcement officials, right? But do the police really enforce the law? I mean, most of the time when we're making decisions about whether to break the law or not break the law, are the police around?
STEIL: No.
KEYES: No. What enforces the law for most people?
CRUTCHFIELD: Consequences.
KEYES: What enforces the law for most people?
GOLDSTEIN: It's wrong. I mean, it's wrong to break the law.
KEYES: What enforces the law for most people?
STEIL: The consequences for most people. But do most people kill?
KEYES: No, but see, you all are saying consequences. You're saying external things. How do any of those things operate on individuals? From what?
GOLDSTEIN: From what you were brought up with.
KEYES: From what you're brought up with.
CRUTCHFIELD: Your values.
KEYES: Values, content. It's an internal thing. The enforcement of the law, most of the time for most people, isn't about some external person standing over you. It's about an internal decision. It could be conscience. It could be upbringing. It could be habit. It could be fear of the law. It could be fear of the consequences. But it operates on you from within. So the law is, in fact, enforced as a characteristic of your character or education, yes or no?
CRUTCHFIELD: Yes, and my character is also shaped by religion in that the law that I follow is the law of God.
KEYES: Exactly.
CRUTCHFIELD: And he is the person that watches over me.
KEYES: Exactly.
CRUTCHFIELD: That is an authority that I submit to.
KEYES: Exactly.
STEIL: But in this country, there's a separate of church and state, and you can't bring God into court cases.
KEYES: We're not talking about court cases. We are talking, first and foremost, about what really enforces the law, and whether the source of it is religious, which it certainly can be at time, whether the source of it is calculus. You know, you're dealing with the consequences as you all have suggested. The only thing I want to be clear about is that in most cases most of the time, the law is enforced from within as a matter of the decision people make in their heart and conscience.
Now, when somebody breaks the law, and the police show up, they are enforcing the law, though, in a different sense, aren't they? In what sense are they enforcing the law?
STEIL: They are enforcing the law. It's their job.
CRUTCHFIELD: They are punishing.
KEYES: They are punishing. What does punishment do? What is its purpose?
GOLDSTEIN: To get people to do different the next time.
CRUTCHFIELD: To deter
KEYES: This is one of those things we were just about. That, as we noticed in the opening, that's an idea of what the law is about that came along in the course of the 19th century and that has some validity to it. But is it the only thing that punishment is about, making people better? What did we say was the prime way of enforcing the law? The heart, the conscience, the character. That means that in order to enforce the law, you have to maintain the integrity of the law's hold on heart and conscience. Yes or no?
CRUTCHFIELD: Or you need to maintain your own integrity yourself.
(CROSSTALK)
KEYES: But still, you're using different words to say the same thing. That is the law's hold on your heart and conscience. The motive for our respect for the law might be religion. The motive might be your personal philosophy.
CRUTCHFIELD: Are we speaking...
KEYES: But it is your respect for the law or your fear of the law that, in fact, is going to guide you in terms of your response to the law.
CRUTCHFIELD: Maybe.
KEYES: When someone breaks the law with impunity, what does that do to the integrity of that hold of the law, that respect for the law in a society?
STEIL: The people who are making these decisions aren't following the average law. These people are determining whether or not they're going to kill another human being. They're not following rational. So if you have that, I don't think a deterrent is the answer, because a deterrent is not going to do anything either way. But we're not (UNINTELLIGIBLE) rational...
(CROSSTALK)
KEYES: We haven't talked about a deterrent. We have talked about that which has a hold on one's conscience and heart, and which actually, effectively enforces the law on individuals. And what I'm asking is when you break the law with impunity, what happens to your respect or fear of the law?
CRUTCHFIELD: It waivers.
(CROSSTALK)
KEYES: It waivers. It weakens. That's pretty obvious, isn't it? It waivers, it weakens. The only thing I mean to suggest here is that we have been talking about, well, retribution is the only thing that if it's involved in punishment. That (UNINTELLIGIBLE) not true. The most important fact that’s involved in punishment, from the point of view of the society, is to enforce the law in order to maintain the integrity of the law. In that sense, police, the courts, what do they exist for? They exist not to defend the individuals, a matter of fact it's sad to say. The police often show up after you are dead. The police often show up to investigate the crime.
CRUTCHFIELD: Alan, may I ask — are you saying that we need to have laws, and we need to have rules simple because they are rules, and whether they are good or bad?
KEYES: No, no, no. We're not even talking (UNINTELLIGIBLE) whether laws are good or bad. We are talking to the question of what constitutes the effective enforcement of the law and what actually weakens that enforcement. See, because we have talked in a Faso fashion as if the aim of punishment is merely retribution, or the aim of punishment is merely rehabilitation. Always we talk as if punishment is about the individual. Isn't punishment also about the society, about the law, about the need to maintain respect and fear of the law in individual heart and conscience, so that the society can be orderly without the need to have a law enforcement official standing over everybody?
CRUTCHFIELD: It is about society, which is why it is a very important issue to society, which is why we need to consider capital punishment and the effect it has on the human heart and not just the fact that it is a rule enforced by the law, and we need to observe it, because it's a very important rule.
KEYES: Well, see, it is exactly in that regard, I think, that sometimes we don't consider the effect of capital punishment, because in the context of that retribution and the whole calculus of retribution, the state steps in and it kind of relieves individuals of the burden of seeking that revenge. As a matter of fact, it prevents them, doesn't it? In our society, revenge isn't allowed.
But if the law is then seen to act without effectiveness in such a way as to reduce the respect and fear that people have for the law, what will be the social consequence?
CRUTCHFIELD: I don't think that abolishing capital punishment reduces respect for the law.
KEYES: What will be the consequence, Ben, if that happens?
GOLDSTEIN: I'm not...
KEYES: What would be the consequence?
CRUTCHFIELD: Well, in theory...
KEYES: If you don't enforce the law in such a way as to support fear and respect of the law, what will be the consequence?
GOLDSTEIN: You'd have chaos.
KEYES: You'd have chaos. So this then becomes an added question, when you consider whether it's the death penalty or anything else. And here is my question for you just to think about for a minute. When I go out and kill somebody, have I done something that it's possible for me to compensate for?
STEIL: No, so...
(CROSSTALK)
KEYES: Can I make up that difference in any way?
GOLDSTEIN: It's taking a human life.
KEYES: And what damage have I inflicted on the law if I do that crime and fail to rectify that balance? What damage have I inflicted on the law? I've undermined its respect. I've undermined the sense of its integrity. And in the greatest consequence of all for people in the society, I have said that the law, in point of fact, does not have force, does not have effectiveness. How are we to correct that breach of the law?
CRUTCHFIELD: Well, there is a price to pay.
(CROSSTALK)
KEYES: How can we punish the crime of murder in a way that sets things right from the point of view of the laws' integrity?
CRUTCHFIELD: Unfortunately for the criminal, it is my belief that he will have two forms of punishment, if you don't mind my saying, one is on this earth and the other one is in the afterlife. Now, the one on this earth, whether it be capital punishment or whether it be permanent imprisonment, life, you know, life in jail, I think is enough to suffer.
KEYES: See, I think that you have actually touched on the heart of the matter, because when you're faced with a crime that is so enormous in its consequences and moral implications that anything we do as human beings is not going to rectify the damage that has been done to the individuals or to the law. Then it is possible, isn't it, that one step you have to take is to admit your own limitations, and to say, we are not adequate judges
here. And we're going to have to send you to be judged by that power which has the wisdom and the power to do what is necessary in response to your crime.
CRUTCHFIELD: I agree.
KEYES: And that means capital punishment, because that — if you see it in those terms that you have described...
CRUTCHFIELD: OK.
KEYES: ... then capital punishment isn't about ending a life. It is, in fact, about fulfilling in the higher court of God's justice that law, that rectification of the balance of law that cannot be done by human beings.
CRUTCHFIELD: That's assuming that it can be done here on earth.
KEYES: Well, that's assuming that it can't be done here on earth, and that in order to see it done, you must send the perpetrator to the higher
court, and that's exactly the way our judges used to do it. They would look at the offender, and they would say, “May God have mercy on your soul.” They would invoke the higher authority to which they were dispatching the perpetrator of the deed.
I really appreciate it. Thank you all for the sharing of this moment and the insights.
I think that part of what I'm going to try to accomplish every day on this show is to look for that perspective on an issue like this that people aren't always willing to think about. And I appreciate your willingness to cooperate in that. Next, we're going to have the bottom line, and I'm going to be joined by someone who deeply disagrees with the application of the death penalty, and we're going to have a little debate honestly about that. Later, there's controversy out there already about this program. We're making waves, and I'm going to tell you about it in our next half hour. You won't want to miss it.
But first of all, you have noticed, I am sure, that the Enron executives have already received their subpoenas. They're going up to Capitol Hill, and because of all of the damage that was done to the stockholders and the pension fund holders, they are going to have to be made to answer for that damage. Well, you know, on September 11, an awful lot of damage was done, to New York, to Americans, a lot of lives were lost. And yet, we haven't yet seen signs of a single hearing to explain the deep breach of our national security that we saw in the results of that day. Did that make sense?
(COMMERCIAL BREAK)
KEYES: Welcome back. Now, we get to the “Bottom Line.”
And joining us now, Jane Henderson, the co-director of the Quijote Center, a national grassroots, non-profit organization promoting social justice. And we have been talking this evening about, of course, capital punishment. And whether or not there are some crimes and circumstances that require it, or whether or not in a society that's really seeking to make progress and advancement, you get to a point where you are beyond it. And that's been a great debate that has been going on in our society during the course of this century and in the century before against the backdrop of a whole history of human practices, where the question was raised in the context of an effort to move societies away from patterns of cruelty in punishment.
But the question arises as a question of justice really. I mean, aren't there certain crimes that cry out for the death penalty, because they are of such enormity that it seems like nothing else will do. And I think a lot of people would be feeling that right now in the context of these terrorist attacks. What do you say to those who believe that in the face of that kind of crime, Jane, we have to have the death penalty?
JANE HENDERSON, CO-DIRECTOR, THE QUIJOTE CENTER: I would say that, particularly in the context of September 11, is that to carry out the death penalty against al Qaeda is to only fall into the pattern of what al Qaeda is asking us to do. It's creating martyrs. It's creating another martyr which will only fuel the movement. I think at this particular point in history, we can protect society by locking people up for life or for really long sentences, and there really isn't a need for the death penalty. And that if we really want to promote an international culture where human rights are protected and respected, then the state should set the example, and the U.S. is a leader in the world to set the example.
KEYES: But doesn't the state actually have a responsibility that goes beyond that of individuals? I was reminded of this, because I was looking over the section not long ago on the Catholic Catechism. And it talks about the responsibilities of state and leaders, and that they, in fact,
have a special responsibility for the order of the society and the security of the society, and that special responsibility can sometimes involve the need to inflict penalties, like the death penalty. In the face of something like terrorism, where a threat has come against us, and one of the things that I think is so clear about it, most Americans are not looking at that terrorist act and seeing proof of the government's ability to take care of these folks, put them in jail, keep them from harming us. As a matter of fact, it seems like proof when a plane hits the Pentagon that even with all the millions we spend, the really evil folks seem to be able to get by and to get through and do the harm and damage that they have inflicted upon us. Doesn't that suggest that in response to a threat like that, the only — well, to put it kind of crudely, the only safe terrorist is in fact a dead one who can't threaten us anymore?
HENDERSON: Well, I guess the question is whether we, as a nation, really want to come together with other nations in the world to combat terrorism. And that to me is a really different question, and I think that's what most people in this country are concerned about. They are concerned about the safety of their families, of their children. They want to know their children can go off to school in the morning and will come back home safely. The death penalty really has very little to tell us or provide us in terms of this battle against terrorism.
KEYES: Well, but you're not suggesting, are you, that the death penalty is like the terrorists?
HENDERSON: No.
KEYES: I mean, because in point of fact, there is a key distinction at the heart of the death penalty that the terrorist obviously doesn't make. We were talking about it, in fact, on last night's show, because the terrorist targets the innocent, and the death penalty by means that are conscientious, not always perfect, but conscientious is targeted at the guilty. Isn't it important to maintain that distinction between innocence and guilt?
HENDERSON: In terms of innocence and guilt, we certainly want to protect innocent people. My question is whether by talking about giving the death penalty to bin Laden or other people who were involved in the attacks of September 11 is if we don't really obscure the real issue, which is how do we, as build an international force against terrorism, which will shut down the al Qaeda network?
KEYES: Well, see, but when you say shut down the al Qaeda network, what do you mean? The al Qaeda network consists of dangerous individuals, who are determined by whatever means they can get, and people pretend it's big sophisticated means, but that's not true. The attacks actually involved relatively unsophisticated means, whatever they can get their hands on, they are going to go out and kill innocent people for reasons for their fanaticism and ideology. I mean, aren't folks like that a little bit in just a simple sense like sort of the rabid animals that would attack all kinds of people, and that in the end, just had to be put down. Are we faced with a situation, where in the end in order to be secure, in order to defend the laws and the society, we must, in fact, exercise the right of self-defense and eliminate the threat?
HENDERSON: I'm not sure that the death penalty itself defends at all in this case. I mean — and in fact, when you have people who are willing to commit suicide attacks, as we saw on September 11, again, I would argue what kind of deterrence does the death penalty have? We simply create martyrs.
KEYES: Well, see, I...
HENDERSON: The other reality...
KEYES: Well, because one of the things that I think was touched on in the course of the discussion I had with the students just now was the fact that we talk in these terms as if the only thing that's involved in the death penalty or the punishment is deterrence or retribution. But in point
in fact, there's another element that's involved, and that is the element of simply making it clear that there is a difference between right and wrong, that the law forcefully respects that difference, and that when you violate it, the integrity of the law, the integrity of that position, which respects the difference between innocence and guilt, right and wrong, must be restored.
Aren't there certain circumstances where the magnitude of the deed requires the death penalty, not in retribution, not for the sake of rehabilitation, but simply in order to make the point, you have done that which crosses the line, and it's absolutely unacceptable.
HENDERSON: But I would argue when the state decides to take life, does not the state lower all of us to the level of the person who is committing major acts?
KEYES: But that question would imply — wait...
(CROSSTALK)
HENDERSON: And I don't think justice is served...
KEYES: But that's my question...
HENDERSON: ... when in fact there are other means to protect society. And I think that's really...
KEYES: But wait, wait...
HENDERSON: ... the question.
(CROSSTALK)
KEYES: The question you've asked — that's why I asked about the equivalent, because your talking as if when the states a life, it degrades. That's not true.
HENDERSON: I would argue...
KEYES: If the state takes the life of the guilty, it has not degraded life. As a matter of fact, one could argue that insofar if somebody goes out, commits a cold-blooded murder, they have shown the utmost disregard for life. And in order to make it clear that the state and the society respect that life, you must look that individual in the eye and say, when you struck the blow against the other, you struck it against yourself. And you and everyone else must understand that for the sake of our respect for the sanctity and sacredness of life. Without that message, aren't we, in fact, sending a message of equivalence between innocent and guilt that not only encourage crime, but degrade the concept of our respect for life?
HENDERSON: No. And I would argue that, you know, we have a situation in this country now where the debate on the death penalty has shifted, because there is lots of questioning and legitimate questioning going on about whether our justice system is really fair enough for us to play God, in fact, and decide who should live and who should die? We had 99 people released from Death Row over the last 20 to 25 years, who have been found to be innocent. That's one person for every seven people who have been executed.
KEYES: This is what intrigues me.
HENDERSON: And the question that...
KEYES: Wait a second.
(CROSSTALK)
HENDERSON: Go ahead.
KEYES: Wait a second, because it intrigues me that in making that statement, you're acting as if the distinction between innocent and guilt is critically important, and I agree with you. And I think that in those instances where we find that the system is inadequate to make that distinction effectively, than as they did in one of our states, you have to shut down the system for a while. Don't inflict the death penalty. But that is an argument for reform in the adjudication process. It's not an argument in principle against the death penalty. As a matter of fact, insofar as what you said, it implies that there’s a real distinction between guilt and innocence, and that the system must observe that distinction that again becomes an argument in favor of inflicting the death penalty in order to make sure that that distinction is maintained.
HENDERSON: But the question is is whether we can ever have a system that is fair enough and even-handed enough that it can make those decisions right all the time.
KEYES: Well...
HENDERSON: I mean, Governor Ryan in Illinois...
KEYES: That's right.
HENDERSON: ... imposed a moratorium for reasons that are not unique in Illinois, but in large part because of a man named Anthony Porter...
KEYES: That's right...
(CROSSTALK)
HENDERSON: ... who everybody thought was guilty —
KEYES: One of the things...
HENDERSON: If you think that...
KEYES: ...that is happening — one of the things that's happening on our side was DNA and other things. Certainly a lot of questions are being raised about past guilty verdicts, but that also suggests, doesn't it, that science, technology and the application...
(CROSSTALK)
HENDERSON: (UNINTELLIGIBLE).
KEYES: ... let me finish — and the application of human ingenuity are in fact making us more capable of determining these facts and making correct judgments.
HENDERSON: I'm not sure...
(CROSSTALK)
KEYES: And so, we in fact are making progress in the very area that leads to this question.
HENDERSON: I'm not sure that that's the case, and again, I go back to the story of Anthony Porter. Anthony Porter came within 48 hours of execution. Nobody thought he was innocent, including his own defense attorney. When the Illinois Supreme Court said because his IQ was so low, they were going to examine whether he was mentally competent enough to be executed. Hear me out. In those months when...
KEYES: But that's...
(CROSSTALK)
HENDERSON: ... a mistake, it was not...
(CROSSTALK)
KEYES: ... that was not — excuse me —
(CROSSTALK)
HENDERSON: ... it was not anyone in the (UNINTELLIGIBLE).
KEYES: That was not — hold on — that was not that anecdotes suggests that in that particular case, prudence dictated that you take a closer look, and that you apply the criteria. But you have not...
HENDERSON: But no, my point is...
(CROSSTALK)
KEYES: ... you have not...
HENDERSON: ... like so many cases of innocent people...
KEYES: Let me finish. You have not by that argument...
HENDERSON: ... it was despite (UNINTELLIGIBLE) because of it —
(CROSSTALK)
KEYES: ... excuse me — you have not by that argument answered the facts that are in front of us that in fact we are not getting worse at making the distinction between guilt and innocence, we are getting better...
HENDERSON: I would disagree.
KEYES: ... in terms of the application of our science and technology.
HENDERSON: I would disagree, and in fact...
KEYES: Jane, I appreciate the fact that you were able to join us today. Television imposes its requirements, but I think that the healthy discussion that we're having in the context of the terrorist attacks is one that reminds us that we are a people, yes, who feel strongly in response to the kind of evil that's been inflicted against us, but we're also a people capable of listening in conscience to one another and coming to determinations that are based not on the need for revenge, but on a serious argument such as the one we have been having about the requirements of justice. And that, I think, is at the heart in fact of the discussion of capital punishment. Later, I'm going to tell you a little bit about what's on my mind and the controversy that has raged now to the point where a lot of folks are noticing, this controversy on the ALAN KEYES IS MAKING SENSE show. But first, we're going to take some time to see what's on your mind. You are watching MSNBC, the best news on cable.
(COMMERCIAL BREAK)
KEYES: Now, it's time for what's “On Your Mind.” We're going to take your calls and comments, look at some of the e-mails that have been coming in in the course of the last few days.
First, let's go to Connecticut, Ann (ph) Mariam — welcome to MAKING SENSE.
CALLER: Hi, Alan — thanks for taking my call.
KEYES: Glad to do it.
CALLER: I wanted to say, I find it really significant that your show on abortion was last night, and capital punishment is tonight. I mean, they both have to do with murder, I think. God said “Thou shall not kill.” He didn't say, “Thou shall not kill unless.” I mean, either you believe that or you don't. I think if someone is against abortion, then they really need to be against capital punishment on general principles.
KEYES: Well, two things. First of all, that is actually a somewhat misleading, and I know we use it all the time, thou shalt not kill. The lliteral meaning of that commandment is thou shalt not do murder, which is unlawful killing. And of course, if you look at the scope of the Old Testament rules and regulations, God not only does not say in any sense that you're never allowed to kill anybody. He, himself, in fact requires the death penalty in response to certain kinds of crimes, including crimes that we would right now exclude from that.
The other point is that one that I was making in the discussion that in fact if you don't observe the innocent-guilt distinction and you're going to treat the death of an innocent child in the womb as if it is the same as the state's infliction of the death penalty on someone guilty of a heinous murder, if you destroy that distinction, you're not showing respect for life. You're showing disrespect for life, and you're destroying the distinction fundamentally that establishes the integrity of the law.
Let's go to Owen in Florida — Owen, welcome to the ALAN KEYES show.
CALLER: Oh, Alan, thank you so much for taking my call.
KEYES: Glad to have you on the show.
CALLER: I am curious about Jane Henderson. She is anti-death penalty. I am wondering if she is pro-life and pro-choice. Now, moving right along, myself, over my lifetime, I have vacillated between the death penalty and anti-death penalty...
(CROSSTALK)
KEYES: Well, Owen, I think one of the things that often is the case, and I find it as incongruous as you, are those folks who will take a stand against the death penalty and say, no, take no risks and don't execute the guilty, but who are perfectly content to accept the wholesale slaughter of beings we know beyond a shadow of a doubt to be innocent, that is being in the womb. That I cannot understand. I have never been able to omprehend, I must confess.
Let's take a few e-mails. We have Rusty and Kathy Reed, who write: “I watched the first Alan Keyes show and was astounded that your network would see fit to air this. The man is a fanatic whose politics are to the right of all but perhaps 1 or 2 percent of the population. Until this show goes off your schedule, I have removed MSNBC from my remote control settings. Please get this nut off of TV.”
I have noticed sometimes that when people find it hard to respond to the argument you make, they start calling you all kinds of names, and that has been one of the standard tactics of folks. But I would also have to say that I have found around this country, and in the response to this program, that a lot of folks are not only entertaining the kind of arguments that require that we re-examine a lot of the liberal premises, but they are thankful for the opportunity to do so. Thanks for your calls and e-mails.
Next, I'm going to tell you about a little something different that's on my mind that one of our competitors is saying about the show — stay with us.
(COMMERCIAL BREAK)
KEYES: Well, it looks like you all are not the only folks who are keeping an eye on ALAN KEYES IS MAKING SENSE. One of my competitors has apparently been taking a close look. Take a look at this.
(BEGIN VIDEO CLIP)
BILL O'REILLY, FOX NEWS: Have you seen the “Alan Keyes” deal? Have you seen it?
MATT ZOLLER SEITZ, STAR LEDGER OF NEWARK TV CRITIC: You know, I try to stay as far away from that guy as I can.
O'REILLY: Now, listen, Alan Keyes is very talented.
(CROSSTALK)
ZOLLER: (UNINTELLIGIBLE) five minutes a day —
O'REILLY: It's Al. It's on MSNBC. It's called ALAN KEYES IS MAKING SENSE.
ZOLLER: I've heard rumors of this.
O'REILLY: OK.
ZOLLER: But I haven't watched it.
O'REILLY: They have to change the name of the program, because what happens is Alan comes out in a suit jacket, and then after the first commercial, he changes into a sweater. He does. I'm not kidding you. All right. So I think it should be “Alan Keyes is Changing Clothes.”
(END VIDEO CLIP)
KEYES: Bill, Bill, Bill, next time you watch the show, turn up the sound, and you'll see that Alan Keyes is changing minds. That's my sense of it.
Thanks — Lester Holt is up next. See you tomorrow.
John Walker Lindh set foot a few hours ago on the country against which he had decided to take up arms along with the Taliban and al Qaeda fighters. In one of the most bizarre episodes to come out of this whole war in Afghanistan, we see the situation of somebody who's case has aroused a lot of emotions in Americans. Along with the other folks who have been captured and taken to Guantanamo and held elsewhere, these are people who are bearing the animus of a lot of anger and resentment that certainly besets the American heart in the wake of the terrible attacks that were brought against us on September 11.
A lot of people look at a case like John Walker Lindh and think that the death penalty is too good for him, but certainly inadequate as it might be necessary. And others, of course, in the context of our ongoing debate over this subject, still think that that is not appropriate.
We're going to be looking at that subject tonight. It may be even more apropos than usual by the fact that this is not an abstraction now. We are struggling with the kind of emotions that give point to the issue of capital punishment, anger and resentment and grief and a sense of outrage to justice certainly lead a lot of people to think that we ought to throw the book at these terrorists and make sure that they are never, ever in a position to do this kind of harm to anybody again.
The controversy is still, though, very real, and I think personally that we ought to think that the people who raise their voices against the death penalty are simply doing something unacceptable. I know our feelings may go, some of us, in that direction. But at the same time, I think it's a reminder of the fact that even when we're in the midst of anger and grief, even when we feel, quite rightly and righteously, that justice demands retribution. The American people are also a people of law, and we are a people of conscience, and we are a people who want to make sure that the steps we take correspond to the values and ideals for which we are supposed to stand in the world.
That means that the discussion and debate we have over capital punishment, over how we're treating prisoners in Guantanamo, these are things we shouldn't be impatient with. We should want to try to clearly understand the issues that are involved in order to make sure that as we fight against the evil that has struck us, we are doing so in a way that corresponds to the sense of principle and justice that has characterized this nation's hopes since it was founded. That's what our discussion is going to be about this evening. We're going to take a look at this issue of capital punishment. We're going to try to get behind it a little bit in terms of the facts of its history and background, and to understand where the question about its legitimacy and justice has come from.
We'll be joined, of course, by folks in the “People Just Like You” segment, who will be just that, people just like you. And I want to say that that's one of the aspects of this show that right now has given me the greatest encouragement. You all have responded in a way that has met my, and exceeded in fact, my greatest expectations, and I want to thank you from my heart for the wonderfully encouraging response, and for the participation, for the e-mails, for the chat room. You are getting involved in a way that will help to vindicate the truth that we are a people who care deeply about the situation of our country, about the issues that confronts us in heart, in mind and in reality.
You can get in touch with us here at 1-866-KEYS-USA, and at AlanKeyes@msnbc.com. You can also join our ongoing chat room at chat.msnbc.com. You are a critical part of this show, and I hope it's always in the back of your mind to get in touch with us. If you feel some day like you might want to be part of one of our panels, just let us know. We'll be taking a look at that, talking to people, and as we put together panels every day, we certainly want to be able to consider you, so let us know.
Right now, let's take a look at this now, the issue of capital punishment, one that challenges our sense of justice, challenges our sense of conscious, and at the same time in the midst of the terrible war that we must fight against terrorists and those who aid and abet them, also challenges us to make every day decisions that will, in fact, mean life or death, for those whom we are able to capture and bring to justice in the context of these efforts.
First, let's try to, as we will always do on this show, get the facts. And joining us for the “Just the Facts” segment, we have George Washington University Professor Robert Cottrol, a legal historian and one who is used to thinking about this issue of capital punishment in a pretty broad context of its history and of its background. Now, this issue of capital punishment is one we often talk about in a narrow context of our own society and civilization. But in point of fact, the death penalty has been with us in terms of human affairs literally for thousands of years, hasn't it? Have there been many cultures and civilizations that haven't it included for some crimes the death penalty?
ROBERT COTTROL, LEGAL HISTORIAN: I think you are essentially right. The death penalty has been with us since the beginning of human history, and has basically been a part of most cultures in the world. It only seriously begins to be questioned in the Western world, I think, in the 18th century as part of the more general process of the Enlightenment.
KEYES: Now, what do you think? After all those years of human experience, when in religious traditions, in traditions of law and so forth, the idea that there are some crimes that are so bad that you basically have to inflict the death penalty. What led to a question being raised about the justice inappropriateness of this punishment?
COTTROL: Well, as you have said, the death penalty had been with us — been with human civilization from the very beginning. Let me also say that I think other things, torture had been a part of human punishment in most societies until the Enlightenment. I think what happens is that, particularly in the 18th century, people begin looking at the human condition in new kinds of ways. They begin questioning traditional punishments, and indeed the death penalty begins getting a scrutiny that had not existed.
KEYES: So it's really in the context of reacting against the sense that there had been practices that were cruel, practices that, in fact, were aimed at inflicting pain on people as part even of the test of justice, and folks started to apply principles that were, I guess, in some ways more rational to the idea of what punishment was all about?
COTTROL: I think that's partly it. Certainly by the end of the 18th century, you see, at least most Western nations, questioning the use of torturous punishments. Also you begin seeing a limitation of the death penalty, particularly in America, limiting it to what we today would call first-degree murder and treason, which is quite different from—if you look, for example, at 18th century England, there are some 200 crimes which are capital crimes, including some varieties of petty theft. You begin again towards the end of the 18th century having people rethinking that, and the United States at the beginning is a pioneer in that kind of rethinking.
KEYES: This occurred, did it, in the context as well of an effort to rethink the meaning of punishment itself. I mean, after all, for a long time in human history, the lex talionis, other ideas of that kind, you had punishment that's tit for tat, punishment as retribution, punishment as rectifying the balance of damage that had been created by a given wrong or a given act. In the time period we are talking about, folks started to introduce ideas of punishment that had more to do with rehabilitation, and with trying to establish and promote a certain idea of social progress. Is that so?
COTTROL: Yes. I think that certainly you begin getting more of a utilitarian notion to what extent can we use punishment either as to promote rehabilitation or to promote deterrence. And in the late 18th and early 19th century, there was very often a strong debate between those who are utilitarians and those who are idealists, who believe that retribution is necessary simply as to advance justice.
KEYES: But what about the question...
COTTROL: And it's a debate that we still have to a very great extent.
KEYES: What about the question of the law itself? Because I know that throughout the philosophy of law enforcement, going all the way back to the ancients, including people like Thomas Clarence (ph). There was a concept of a law as necessarily involving in its integrity an idea of being effective, of being enforced in a way that would inspire respect and fear, and therefore take hold on the heart. Was the requirement for the death penalty the argument for its necessity or a part of that understanding of the need to really have forceful punishments behind the law?
COTTROL: I think as now, you've traditionally had a variety of arguments for the death penalty and there are ones that would be recognized even today. That is one could go back and one will find people making what is essentially a retributive argument; others making the utilitarian argument that the death penalty is necessary as a deterrent. Kant — Emmanuel Kant I think is very interesting in this regard, because he argues against a utilitarian calculus and basically for the idea for justice, that the death penalty is necessary simply as a matter of justice...
KEYES: Of justice.
(CROSSTALK)
COTTROL: ... rather than as a utilitarian matter.
KEYES: Well, I certainly think in the midst of this terrorist effort, we're getting a sense of the tension now between the sense that somehow conscience revolts at the idea of cruel and difficult punishments, and the idea that there are certain kinds of crimes that seem to go beyond the pale and therefore require really forceful responses that make it clear that this is totally unacceptable to the world and to society. Robert, thank you so much for joining us tonight — really appreciate your help and insight.
COTTROL: Thank you.
KEYES: On the basis of this little introduction to the issue of capital punishment, we're going to be joined now by some people just like you to have the discussion that I think is becoming the characteristic heart of this program, and that aims at trying to understand a little bit the sense, the logic that is behind the issues that we are confronted with, just applying the common sense of the American people.
Later, we'll get to “What's on Your Mind,” taking your calls, your comments, looking at the wonderful e-mails that have been coming in loads in response to the program. You can join our online discussion at chat.msnbc.com. But first, does this make sense, do you think? I understand that Libya is now engaged in talks with folks at our State Department to come to an agreement to take its name off the list of terrorist states, in exchange for paying $6 billion in compensation to the victims of the bombing that Libya was involved in in 1988. Now, let me see here. We have bin Laden, who was responsible for bringing down the World Trade Center. How many years and how many billions of dollars do you think it will take to get his name off the list of terrorists? Is that an approach that you think makes sense?
(COMMERCIAL BREAK)
KEYES: Welcome back. It's time for a little bit of sense from people just like you. Joining me now is Ben Goldstein, an international affairs student George Washington University. Abbi Crutchfield is also a student at Georgetown. She is studying international affairs and wants to be a diplomat someday, and I've been encouraging that, you can bet. And Bryan Steil is an international business student, also at Georgetown University.
Now, that's not a coincidence. Y'all are going to notice that, I am sure, right away. We have three students tonight. Right now, they're speaking — we are not going to be pre-selecting from any given group. But I kind of felt it would be interesting to talk about this issue from the perspective of young folks, who are in the midst of the kind of considerations and discussions that you and I both know go on until late into the night and early in the morning when you're at college, and can therefore add a kind of intensity, especially in the context of an event like September 11 that obviously has touched the lives of all Americans, but especially young folks in a way perhaps for the first time in their lives with a magnitude like nothing before. And that leads to my first question. Abbi.
ABBI CRUTCHFIELD, GEORGETOWN UNIVERSITY STUDENT: Yes.
KEYES: We are faced with this terrible event on September 11, people who have done something that in many ways in its evil and its consequences goes way beyond what most of us can begin to comprehend. I noticed there was a controversy over Danny Glover, the actor, because he seemed to be suggesting to some folks that maybe Osama bin Laden didn't deserve the harshest possible punishment for masterminding this terrible effort. Aren't there certain crimes that just cry out for the death penalty?
CRUTCHFIELD: No, there are not. And the subject of evil, I think that evil, the basis of evil is hatred, and the basis of the capital punishment is also the vengeance and hatred itself. And the only thing we can combat that with is the abolishment of capital punishment, which would suggest forgiveness or love. And that is my main theme, I think, that I'll be talking about this evening.
KEYES: See, I think that is very important. Do you think, then, that what's at the heart of the issue of capital punishment is hatred and resentment? Is that what we're talking about?
BEN GOLDSTEIN, GEORGE WASHINGTON UNIV. STUDENT: No, I think we're talking about closure for the victims' families. I think we're talking about resolving very tough issues. You know, Abbi, I'd be interested in you maybe going down to ground zero and talking to some of the workers, or talking to some of the victims' families from the World Trade Center attacks and see what they thought about capital punishment.
CRUTCHFIELD: Without a doubt, I bet that their initial reaction is retribution, and they'd like justice to be done. And usually someone wants the most severe punishment, when they have such severe pain. But on the subject of closure, how can they feel closure knowing that once the person is dead, their child, son, daughter, husband and wife is still lost.
KEYES: I have a question before we start, because it's very interesting to me that Abbi just now used retribution and justice as if they are the same thing. Do you think they are?
BRYAN STEIL, GEORGETOWN UNIVERSITY STUDENT: I don't think they are. I think justice, we have to look inside and say with — and act with prudence. Not that we don't have hatred inside ourselves against people who would act against us. But I think it's acting in a morally, proper way as to whether or not we can retaliate, to kill them, to have a government that kills them back, and I think that's completely improper.
KEYES: But is that what we're doing in point of fact? I mean, it's certainly where all of this started. We've talked about the backdrop of history in terms of this whole death penalty, and the lex talionis, as it was called, the law of retribution, eye for an eye, the sense that justice consisted in if you got me, I was going to go get you and so forth. That was one element of justice. But as societies became more organized, and certainly in societies like ours, isn't a part of justice just about, first of all, respect for the law? Isn't that the basis for, not only justice, but order in this life? Would there be any order if you don't have respect and fear of the law? Isn't that, in fact, one of the prime requisites of justice on the whole? Yes or no?
STEIL: There are people who don't respect the law, and those people are not safe in our society to exist. And we have to...
(CROSSTALK)
KEYES: Oh, but right now...
STEIL: Is killing them the answer?
KEYES: Is, in fact, one element of the law, and probably the most important element for law enforcement, right? Just think about it. We often think of the police as law enforcement officials, right? But do the police really enforce the law? I mean, most of the time when we're making decisions about whether to break the law or not break the law, are the police around?
STEIL: No.
KEYES: No. What enforces the law for most people?
CRUTCHFIELD: Consequences.
KEYES: What enforces the law for most people?
GOLDSTEIN: It's wrong. I mean, it's wrong to break the law.
KEYES: What enforces the law for most people?
STEIL: The consequences for most people. But do most people kill?
KEYES: No, but see, you all are saying consequences. You're saying external things. How do any of those things operate on individuals? From what?
GOLDSTEIN: From what you were brought up with.
KEYES: From what you're brought up with.
CRUTCHFIELD: Your values.
KEYES: Values, content. It's an internal thing. The enforcement of the law, most of the time for most people, isn't about some external person standing over you. It's about an internal decision. It could be conscience. It could be upbringing. It could be habit. It could be fear of the law. It could be fear of the consequences. But it operates on you from within. So the law is, in fact, enforced as a characteristic of your character or education, yes or no?
CRUTCHFIELD: Yes, and my character is also shaped by religion in that the law that I follow is the law of God.
KEYES: Exactly.
CRUTCHFIELD: And he is the person that watches over me.
KEYES: Exactly.
CRUTCHFIELD: That is an authority that I submit to.
KEYES: Exactly.
STEIL: But in this country, there's a separate of church and state, and you can't bring God into court cases.
KEYES: We're not talking about court cases. We are talking, first and foremost, about what really enforces the law, and whether the source of it is religious, which it certainly can be at time, whether the source of it is calculus. You know, you're dealing with the consequences as you all have suggested. The only thing I want to be clear about is that in most cases most of the time, the law is enforced from within as a matter of the decision people make in their heart and conscience.
Now, when somebody breaks the law, and the police show up, they are enforcing the law, though, in a different sense, aren't they? In what sense are they enforcing the law?
STEIL: They are enforcing the law. It's their job.
CRUTCHFIELD: They are punishing.
KEYES: They are punishing. What does punishment do? What is its purpose?
GOLDSTEIN: To get people to do different the next time.
CRUTCHFIELD: To deter
KEYES: This is one of those things we were just about. That, as we noticed in the opening, that's an idea of what the law is about that came along in the course of the 19th century and that has some validity to it. But is it the only thing that punishment is about, making people better? What did we say was the prime way of enforcing the law? The heart, the conscience, the character. That means that in order to enforce the law, you have to maintain the integrity of the law's hold on heart and conscience. Yes or no?
CRUTCHFIELD: Or you need to maintain your own integrity yourself.
(CROSSTALK)
KEYES: But still, you're using different words to say the same thing. That is the law's hold on your heart and conscience. The motive for our respect for the law might be religion. The motive might be your personal philosophy.
CRUTCHFIELD: Are we speaking...
KEYES: But it is your respect for the law or your fear of the law that, in fact, is going to guide you in terms of your response to the law.
CRUTCHFIELD: Maybe.
KEYES: When someone breaks the law with impunity, what does that do to the integrity of that hold of the law, that respect for the law in a society?
STEIL: The people who are making these decisions aren't following the average law. These people are determining whether or not they're going to kill another human being. They're not following rational. So if you have that, I don't think a deterrent is the answer, because a deterrent is not going to do anything either way. But we're not (UNINTELLIGIBLE) rational...
(CROSSTALK)
KEYES: We haven't talked about a deterrent. We have talked about that which has a hold on one's conscience and heart, and which actually, effectively enforces the law on individuals. And what I'm asking is when you break the law with impunity, what happens to your respect or fear of the law?
CRUTCHFIELD: It waivers.
(CROSSTALK)
KEYES: It waivers. It weakens. That's pretty obvious, isn't it? It waivers, it weakens. The only thing I mean to suggest here is that we have been talking about, well, retribution is the only thing that if it's involved in punishment. That (UNINTELLIGIBLE) not true. The most important fact that’s involved in punishment, from the point of view of the society, is to enforce the law in order to maintain the integrity of the law. In that sense, police, the courts, what do they exist for? They exist not to defend the individuals, a matter of fact it's sad to say. The police often show up after you are dead. The police often show up to investigate the crime.
CRUTCHFIELD: Alan, may I ask — are you saying that we need to have laws, and we need to have rules simple because they are rules, and whether they are good or bad?
KEYES: No, no, no. We're not even talking (UNINTELLIGIBLE) whether laws are good or bad. We are talking to the question of what constitutes the effective enforcement of the law and what actually weakens that enforcement. See, because we have talked in a Faso fashion as if the aim of punishment is merely retribution, or the aim of punishment is merely rehabilitation. Always we talk as if punishment is about the individual. Isn't punishment also about the society, about the law, about the need to maintain respect and fear of the law in individual heart and conscience, so that the society can be orderly without the need to have a law enforcement official standing over everybody?
CRUTCHFIELD: It is about society, which is why it is a very important issue to society, which is why we need to consider capital punishment and the effect it has on the human heart and not just the fact that it is a rule enforced by the law, and we need to observe it, because it's a very important rule.
KEYES: Well, see, it is exactly in that regard, I think, that sometimes we don't consider the effect of capital punishment, because in the context of that retribution and the whole calculus of retribution, the state steps in and it kind of relieves individuals of the burden of seeking that revenge. As a matter of fact, it prevents them, doesn't it? In our society, revenge isn't allowed.
But if the law is then seen to act without effectiveness in such a way as to reduce the respect and fear that people have for the law, what will be the social consequence?
CRUTCHFIELD: I don't think that abolishing capital punishment reduces respect for the law.
KEYES: What will be the consequence, Ben, if that happens?
GOLDSTEIN: I'm not...
KEYES: What would be the consequence?
CRUTCHFIELD: Well, in theory...
KEYES: If you don't enforce the law in such a way as to support fear and respect of the law, what will be the consequence?
GOLDSTEIN: You'd have chaos.
KEYES: You'd have chaos. So this then becomes an added question, when you consider whether it's the death penalty or anything else. And here is my question for you just to think about for a minute. When I go out and kill somebody, have I done something that it's possible for me to compensate for?
STEIL: No, so...
(CROSSTALK)
KEYES: Can I make up that difference in any way?
GOLDSTEIN: It's taking a human life.
KEYES: And what damage have I inflicted on the law if I do that crime and fail to rectify that balance? What damage have I inflicted on the law? I've undermined its respect. I've undermined the sense of its integrity. And in the greatest consequence of all for people in the society, I have said that the law, in point of fact, does not have force, does not have effectiveness. How are we to correct that breach of the law?
CRUTCHFIELD: Well, there is a price to pay.
(CROSSTALK)
KEYES: How can we punish the crime of murder in a way that sets things right from the point of view of the laws' integrity?
CRUTCHFIELD: Unfortunately for the criminal, it is my belief that he will have two forms of punishment, if you don't mind my saying, one is on this earth and the other one is in the afterlife. Now, the one on this earth, whether it be capital punishment or whether it be permanent imprisonment, life, you know, life in jail, I think is enough to suffer.
KEYES: See, I think that you have actually touched on the heart of the matter, because when you're faced with a crime that is so enormous in its consequences and moral implications that anything we do as human beings is not going to rectify the damage that has been done to the individuals or to the law. Then it is possible, isn't it, that one step you have to take is to admit your own limitations, and to say, we are not adequate judges
here. And we're going to have to send you to be judged by that power which has the wisdom and the power to do what is necessary in response to your crime.
CRUTCHFIELD: I agree.
KEYES: And that means capital punishment, because that — if you see it in those terms that you have described...
CRUTCHFIELD: OK.
KEYES: ... then capital punishment isn't about ending a life. It is, in fact, about fulfilling in the higher court of God's justice that law, that rectification of the balance of law that cannot be done by human beings.
CRUTCHFIELD: That's assuming that it can be done here on earth.
KEYES: Well, that's assuming that it can't be done here on earth, and that in order to see it done, you must send the perpetrator to the higher
court, and that's exactly the way our judges used to do it. They would look at the offender, and they would say, “May God have mercy on your soul.” They would invoke the higher authority to which they were dispatching the perpetrator of the deed.
I really appreciate it. Thank you all for the sharing of this moment and the insights.
I think that part of what I'm going to try to accomplish every day on this show is to look for that perspective on an issue like this that people aren't always willing to think about. And I appreciate your willingness to cooperate in that. Next, we're going to have the bottom line, and I'm going to be joined by someone who deeply disagrees with the application of the death penalty, and we're going to have a little debate honestly about that. Later, there's controversy out there already about this program. We're making waves, and I'm going to tell you about it in our next half hour. You won't want to miss it.
But first of all, you have noticed, I am sure, that the Enron executives have already received their subpoenas. They're going up to Capitol Hill, and because of all of the damage that was done to the stockholders and the pension fund holders, they are going to have to be made to answer for that damage. Well, you know, on September 11, an awful lot of damage was done, to New York, to Americans, a lot of lives were lost. And yet, we haven't yet seen signs of a single hearing to explain the deep breach of our national security that we saw in the results of that day. Did that make sense?
(COMMERCIAL BREAK)
KEYES: Welcome back. Now, we get to the “Bottom Line.”
And joining us now, Jane Henderson, the co-director of the Quijote Center, a national grassroots, non-profit organization promoting social justice. And we have been talking this evening about, of course, capital punishment. And whether or not there are some crimes and circumstances that require it, or whether or not in a society that's really seeking to make progress and advancement, you get to a point where you are beyond it. And that's been a great debate that has been going on in our society during the course of this century and in the century before against the backdrop of a whole history of human practices, where the question was raised in the context of an effort to move societies away from patterns of cruelty in punishment.
But the question arises as a question of justice really. I mean, aren't there certain crimes that cry out for the death penalty, because they are of such enormity that it seems like nothing else will do. And I think a lot of people would be feeling that right now in the context of these terrorist attacks. What do you say to those who believe that in the face of that kind of crime, Jane, we have to have the death penalty?
JANE HENDERSON, CO-DIRECTOR, THE QUIJOTE CENTER: I would say that, particularly in the context of September 11, is that to carry out the death penalty against al Qaeda is to only fall into the pattern of what al Qaeda is asking us to do. It's creating martyrs. It's creating another martyr which will only fuel the movement. I think at this particular point in history, we can protect society by locking people up for life or for really long sentences, and there really isn't a need for the death penalty. And that if we really want to promote an international culture where human rights are protected and respected, then the state should set the example, and the U.S. is a leader in the world to set the example.
KEYES: But doesn't the state actually have a responsibility that goes beyond that of individuals? I was reminded of this, because I was looking over the section not long ago on the Catholic Catechism. And it talks about the responsibilities of state and leaders, and that they, in fact,
have a special responsibility for the order of the society and the security of the society, and that special responsibility can sometimes involve the need to inflict penalties, like the death penalty. In the face of something like terrorism, where a threat has come against us, and one of the things that I think is so clear about it, most Americans are not looking at that terrorist act and seeing proof of the government's ability to take care of these folks, put them in jail, keep them from harming us. As a matter of fact, it seems like proof when a plane hits the Pentagon that even with all the millions we spend, the really evil folks seem to be able to get by and to get through and do the harm and damage that they have inflicted upon us. Doesn't that suggest that in response to a threat like that, the only — well, to put it kind of crudely, the only safe terrorist is in fact a dead one who can't threaten us anymore?
HENDERSON: Well, I guess the question is whether we, as a nation, really want to come together with other nations in the world to combat terrorism. And that to me is a really different question, and I think that's what most people in this country are concerned about. They are concerned about the safety of their families, of their children. They want to know their children can go off to school in the morning and will come back home safely. The death penalty really has very little to tell us or provide us in terms of this battle against terrorism.
KEYES: Well, but you're not suggesting, are you, that the death penalty is like the terrorists?
HENDERSON: No.
KEYES: I mean, because in point of fact, there is a key distinction at the heart of the death penalty that the terrorist obviously doesn't make. We were talking about it, in fact, on last night's show, because the terrorist targets the innocent, and the death penalty by means that are conscientious, not always perfect, but conscientious is targeted at the guilty. Isn't it important to maintain that distinction between innocence and guilt?
HENDERSON: In terms of innocence and guilt, we certainly want to protect innocent people. My question is whether by talking about giving the death penalty to bin Laden or other people who were involved in the attacks of September 11 is if we don't really obscure the real issue, which is how do we, as build an international force against terrorism, which will shut down the al Qaeda network?
KEYES: Well, see, but when you say shut down the al Qaeda network, what do you mean? The al Qaeda network consists of dangerous individuals, who are determined by whatever means they can get, and people pretend it's big sophisticated means, but that's not true. The attacks actually involved relatively unsophisticated means, whatever they can get their hands on, they are going to go out and kill innocent people for reasons for their fanaticism and ideology. I mean, aren't folks like that a little bit in just a simple sense like sort of the rabid animals that would attack all kinds of people, and that in the end, just had to be put down. Are we faced with a situation, where in the end in order to be secure, in order to defend the laws and the society, we must, in fact, exercise the right of self-defense and eliminate the threat?
HENDERSON: I'm not sure that the death penalty itself defends at all in this case. I mean — and in fact, when you have people who are willing to commit suicide attacks, as we saw on September 11, again, I would argue what kind of deterrence does the death penalty have? We simply create martyrs.
KEYES: Well, see, I...
HENDERSON: The other reality...
KEYES: Well, because one of the things that I think was touched on in the course of the discussion I had with the students just now was the fact that we talk in these terms as if the only thing that's involved in the death penalty or the punishment is deterrence or retribution. But in point
in fact, there's another element that's involved, and that is the element of simply making it clear that there is a difference between right and wrong, that the law forcefully respects that difference, and that when you violate it, the integrity of the law, the integrity of that position, which respects the difference between innocence and guilt, right and wrong, must be restored.
Aren't there certain circumstances where the magnitude of the deed requires the death penalty, not in retribution, not for the sake of rehabilitation, but simply in order to make the point, you have done that which crosses the line, and it's absolutely unacceptable.
HENDERSON: But I would argue when the state decides to take life, does not the state lower all of us to the level of the person who is committing major acts?
KEYES: But that question would imply — wait...
(CROSSTALK)
HENDERSON: And I don't think justice is served...
KEYES: But that's my question...
HENDERSON: ... when in fact there are other means to protect society. And I think that's really...
KEYES: But wait, wait...
HENDERSON: ... the question.
(CROSSTALK)
KEYES: The question you've asked — that's why I asked about the equivalent, because your talking as if when the states a life, it degrades. That's not true.
HENDERSON: I would argue...
KEYES: If the state takes the life of the guilty, it has not degraded life. As a matter of fact, one could argue that insofar if somebody goes out, commits a cold-blooded murder, they have shown the utmost disregard for life. And in order to make it clear that the state and the society respect that life, you must look that individual in the eye and say, when you struck the blow against the other, you struck it against yourself. And you and everyone else must understand that for the sake of our respect for the sanctity and sacredness of life. Without that message, aren't we, in fact, sending a message of equivalence between innocent and guilt that not only encourage crime, but degrade the concept of our respect for life?
HENDERSON: No. And I would argue that, you know, we have a situation in this country now where the debate on the death penalty has shifted, because there is lots of questioning and legitimate questioning going on about whether our justice system is really fair enough for us to play God, in fact, and decide who should live and who should die? We had 99 people released from Death Row over the last 20 to 25 years, who have been found to be innocent. That's one person for every seven people who have been executed.
KEYES: This is what intrigues me.
HENDERSON: And the question that...
KEYES: Wait a second.
(CROSSTALK)
HENDERSON: Go ahead.
KEYES: Wait a second, because it intrigues me that in making that statement, you're acting as if the distinction between innocent and guilt is critically important, and I agree with you. And I think that in those instances where we find that the system is inadequate to make that distinction effectively, than as they did in one of our states, you have to shut down the system for a while. Don't inflict the death penalty. But that is an argument for reform in the adjudication process. It's not an argument in principle against the death penalty. As a matter of fact, insofar as what you said, it implies that there’s a real distinction between guilt and innocence, and that the system must observe that distinction that again becomes an argument in favor of inflicting the death penalty in order to make sure that that distinction is maintained.
HENDERSON: But the question is is whether we can ever have a system that is fair enough and even-handed enough that it can make those decisions right all the time.
KEYES: Well...
HENDERSON: I mean, Governor Ryan in Illinois...
KEYES: That's right.
HENDERSON: ... imposed a moratorium for reasons that are not unique in Illinois, but in large part because of a man named Anthony Porter...
KEYES: That's right...
(CROSSTALK)
HENDERSON: ... who everybody thought was guilty —
KEYES: One of the things...
HENDERSON: If you think that...
KEYES: ...that is happening — one of the things that's happening on our side was DNA and other things. Certainly a lot of questions are being raised about past guilty verdicts, but that also suggests, doesn't it, that science, technology and the application...
(CROSSTALK)
HENDERSON: (UNINTELLIGIBLE).
KEYES: ... let me finish — and the application of human ingenuity are in fact making us more capable of determining these facts and making correct judgments.
HENDERSON: I'm not sure...
(CROSSTALK)
KEYES: And so, we in fact are making progress in the very area that leads to this question.
HENDERSON: I'm not sure that that's the case, and again, I go back to the story of Anthony Porter. Anthony Porter came within 48 hours of execution. Nobody thought he was innocent, including his own defense attorney. When the Illinois Supreme Court said because his IQ was so low, they were going to examine whether he was mentally competent enough to be executed. Hear me out. In those months when...
KEYES: But that's...
(CROSSTALK)
HENDERSON: ... a mistake, it was not...
(CROSSTALK)
KEYES: ... that was not — excuse me —
(CROSSTALK)
HENDERSON: ... it was not anyone in the (UNINTELLIGIBLE).
KEYES: That was not — hold on — that was not that anecdotes suggests that in that particular case, prudence dictated that you take a closer look, and that you apply the criteria. But you have not...
HENDERSON: But no, my point is...
(CROSSTALK)
KEYES: ... you have not...
HENDERSON: ... like so many cases of innocent people...
KEYES: Let me finish. You have not by that argument...
HENDERSON: ... it was despite (UNINTELLIGIBLE) because of it —
(CROSSTALK)
KEYES: ... excuse me — you have not by that argument answered the facts that are in front of us that in fact we are not getting worse at making the distinction between guilt and innocence, we are getting better...
HENDERSON: I would disagree.
KEYES: ... in terms of the application of our science and technology.
HENDERSON: I would disagree, and in fact...
KEYES: Jane, I appreciate the fact that you were able to join us today. Television imposes its requirements, but I think that the healthy discussion that we're having in the context of the terrorist attacks is one that reminds us that we are a people, yes, who feel strongly in response to the kind of evil that's been inflicted against us, but we're also a people capable of listening in conscience to one another and coming to determinations that are based not on the need for revenge, but on a serious argument such as the one we have been having about the requirements of justice. And that, I think, is at the heart in fact of the discussion of capital punishment. Later, I'm going to tell you a little bit about what's on my mind and the controversy that has raged now to the point where a lot of folks are noticing, this controversy on the ALAN KEYES IS MAKING SENSE show. But first, we're going to take some time to see what's on your mind. You are watching MSNBC, the best news on cable.
(COMMERCIAL BREAK)
KEYES: Now, it's time for what's “On Your Mind.” We're going to take your calls and comments, look at some of the e-mails that have been coming in in the course of the last few days.
First, let's go to Connecticut, Ann (ph) Mariam — welcome to MAKING SENSE.
CALLER: Hi, Alan — thanks for taking my call.
KEYES: Glad to do it.
CALLER: I wanted to say, I find it really significant that your show on abortion was last night, and capital punishment is tonight. I mean, they both have to do with murder, I think. God said “Thou shall not kill.” He didn't say, “Thou shall not kill unless.” I mean, either you believe that or you don't. I think if someone is against abortion, then they really need to be against capital punishment on general principles.
KEYES: Well, two things. First of all, that is actually a somewhat misleading, and I know we use it all the time, thou shalt not kill. The lliteral meaning of that commandment is thou shalt not do murder, which is unlawful killing. And of course, if you look at the scope of the Old Testament rules and regulations, God not only does not say in any sense that you're never allowed to kill anybody. He, himself, in fact requires the death penalty in response to certain kinds of crimes, including crimes that we would right now exclude from that.
The other point is that one that I was making in the discussion that in fact if you don't observe the innocent-guilt distinction and you're going to treat the death of an innocent child in the womb as if it is the same as the state's infliction of the death penalty on someone guilty of a heinous murder, if you destroy that distinction, you're not showing respect for life. You're showing disrespect for life, and you're destroying the distinction fundamentally that establishes the integrity of the law.
Let's go to Owen in Florida — Owen, welcome to the ALAN KEYES show.
CALLER: Oh, Alan, thank you so much for taking my call.
KEYES: Glad to have you on the show.
CALLER: I am curious about Jane Henderson. She is anti-death penalty. I am wondering if she is pro-life and pro-choice. Now, moving right along, myself, over my lifetime, I have vacillated between the death penalty and anti-death penalty...
(CROSSTALK)
KEYES: Well, Owen, I think one of the things that often is the case, and I find it as incongruous as you, are those folks who will take a stand against the death penalty and say, no, take no risks and don't execute the guilty, but who are perfectly content to accept the wholesale slaughter of beings we know beyond a shadow of a doubt to be innocent, that is being in the womb. That I cannot understand. I have never been able to omprehend, I must confess.
Let's take a few e-mails. We have Rusty and Kathy Reed, who write: “I watched the first Alan Keyes show and was astounded that your network would see fit to air this. The man is a fanatic whose politics are to the right of all but perhaps 1 or 2 percent of the population. Until this show goes off your schedule, I have removed MSNBC from my remote control settings. Please get this nut off of TV.”
I have noticed sometimes that when people find it hard to respond to the argument you make, they start calling you all kinds of names, and that has been one of the standard tactics of folks. But I would also have to say that I have found around this country, and in the response to this program, that a lot of folks are not only entertaining the kind of arguments that require that we re-examine a lot of the liberal premises, but they are thankful for the opportunity to do so. Thanks for your calls and e-mails.
Next, I'm going to tell you about a little something different that's on my mind that one of our competitors is saying about the show — stay with us.
(COMMERCIAL BREAK)
KEYES: Well, it looks like you all are not the only folks who are keeping an eye on ALAN KEYES IS MAKING SENSE. One of my competitors has apparently been taking a close look. Take a look at this.
(BEGIN VIDEO CLIP)
BILL O'REILLY, FOX NEWS: Have you seen the “Alan Keyes” deal? Have you seen it?
MATT ZOLLER SEITZ, STAR LEDGER OF NEWARK TV CRITIC: You know, I try to stay as far away from that guy as I can.
O'REILLY: Now, listen, Alan Keyes is very talented.
(CROSSTALK)
ZOLLER: (UNINTELLIGIBLE) five minutes a day —
O'REILLY: It's Al. It's on MSNBC. It's called ALAN KEYES IS MAKING SENSE.
ZOLLER: I've heard rumors of this.
O'REILLY: OK.
ZOLLER: But I haven't watched it.
O'REILLY: They have to change the name of the program, because what happens is Alan comes out in a suit jacket, and then after the first commercial, he changes into a sweater. He does. I'm not kidding you. All right. So I think it should be “Alan Keyes is Changing Clothes.”
(END VIDEO CLIP)
KEYES: Bill, Bill, Bill, next time you watch the show, turn up the sound, and you'll see that Alan Keyes is changing minds. That's my sense of it.
Thanks — Lester Holt is up next. See you tomorrow.